Case in point: SlashGear took this story from Krebs On Security about criminal charges against Bitcoin traders in Florida. Dr. Weaver was quoted as an expert in that story:

Nicholas Weaver, a researcher at the International Computer Science Institute (ICSI) and at the University of California, Berkeley and keen follower of Bitcoin-related news, said he is unaware of another case in which state law has been used against a Bitcoin vendor. According to Weaver, the Florida case is significant because localbitcoins.com is among the last remaining places that Americans can use to purchase Bitcoins anonymously.

“The biggest problem that Bitcoin faces is actually self-imposed, because it’s always hard to buy Bitcoins,” Weaver said. “The reason is that Bitcoin transactions are irreversible, and therefore any purchase of Bitcoins must be made with something irreversible — namely cash. And that means you either have to wait several days for the wire transfer or bank transfer to go through, or if you want to buy them quickly you pay with cash through a site like localbitcoins.com.”

publication of a statement of fact
that is false,
unprivileged,
has a natural tendency to injure or which causes "special damage," and
the defendant's fault in publishing the statement amounted to at least negligence.

Here, SlashGear and Hillen published a false statement of fact about Dr. Weaver — that he had been charged with a crime. The publication was unprivileged, meaning that it was not immunized from liability by statute (for instance, things you say as a witness in court, or in pleadings filed in court, are generally privileged from liability). Accusing some of being charged with a crime is the sort of thing that has a natural tendency to injure, which is why it is often categorizes as "libel per se" — which merely means that the plaintiff doesn't have to prove that he or she suffered damage to reputation, and gets at least nominal damages without such proof.1 Dr. Weaver probably couldn't prove actual or special damages to his reputation — it's doubtful that anyone gives a shit what a clumsy SlashGear rewrite says. But he could get at least nominal damages because of the nature of the accusation.

That leaves us with the question of fault. As I explained in the context of the Crystal Cox case, at least if the issue being discussed is a public one, a defamation claim always requires proof of some level of fault on the part of the defendant. The level of fault depends on whether the plaintiff is a mere private figure (in which case the plaintiff may only need to prove that the defendant got the story wrong out of negligence) or a public figure (in which case the plaintiff would need to prove actual malice, meaning knowledge that the story was false or reckless disregard to its truth or falsity.) There are complexities and gradations; people can be public figures for limited purposes.

Here, the transformation of Dr. Weaver from respected expert to criminal defendant is a result of an incompetent rewrite of a news story. That's at least negligence. If Dr. Weaver is treated as a private figure he would prevail. But since he's frequently quoted in the news on stories like this, he may well be treated as a limited purpose public figure in the context of coverage of network security issues in the news. So the question is probably whether an incompetent rewrite of a story rises to the level of reckless disregard of the truth as required by the actual malice standard. The answer is almost certainly not. "Reckless disregard" requires more than incompetence; it requires conscious disregard of doubt. Here there's no indication that anyone consciously regarded or disregarded anything.

So: Dr. Weaver probably can't prove the requisite fault against SlashGear and Hillen, even if he wanted to. They live to promote shitty rewrites another day. Fortunately for Dr. Weaver it's difficult to imagine anyone taking SlashGear seriously enough for their incompetence to hurt his reputation.

Remember: just because something is written in a "story" by a "journalist" on a well-trafficked website, that doesn't mean it's anything other than incompetent drivel.

Edited to add SlashGear corrected the story to remove the reference to Dr. Weaver as a defendant, but as of this writing has not offered any retraction or apology. Classy.

Some people misunderstand this category and treat "libel per se" as meaning "I don't have to prove this is false or that you were at fault." That's not what it means. It reduces the burden of proving damages, not the burden of proving falsity or culpability. ▲

30 Responses

One question. What, hypothetically, if he were to submit to them and document a request for the publication of a retraction and they refused. Would that then constitute a conscious "reckless disregard" for the truth?

Screenshots (at least on the mac) are a keypress and click away, and is not dependent on the browser. On the PC it's a keypress, and a trip to an image program like Paint – a bit more work, but still simple enough for anyone to understand. Windows 8 and higher reduced the work to just a keypress.

Save-as within a browser is problematic at best, and usually requires at least the same browser in order to properly read the resulting archive. An image is readable almost anywhere.

Screenshots are easy and self contained. Saving a page requires saving all of the individual elements of the page and converting references between them so that they work locally. Also some things, such as an individual frame in a playing video especially if the video is streaming, will not be easily displayed, if at all. Then when you want to republish the capture, there are a lot more headaches to contend with. Also not all devices are capable of saving the page whereas almost everything can now take a screenshot.

I'm not sure I'd say to their credit. They have removed the reference to you. But they have not acknowledged that an earlier version of the story was incorrect, that you are not a criminal defendant. (At least that we know of.)

indeed, even "in their defense" would be a charitable stretch.
but no doubt pursuing this at length would scare up the hoary old "but ain't nobody got time to publically issue retractions for every single error no matter how erroneous…". yeah, like anybody's asking you to be consistent… hacks.

The name "SlashGear" sounds like a lame attempt to ride on the coattails of Slashdot, which at least has the distinction of being a well-known, long-established, and highly-popular site, even though it basically just offers summaries (often rather inept) of stories on other sites. I've never visited SlashGear and have no intention of ever doing so, so I have no idea how far they go to try to make themselves look similar to Slashdot, if at all, but the name alone indicates a complete absence of creativity.

Regarding screenshots and stuff, if you want to prove that a webpage was a certain way at a certain time, I'd recommend using a service such as http://archive.is/ , since that would be virtually impossible to fake, rather than a screenshot which would be trivial to fake. A screenshot by itself would be pretty weak evidence since anyone using a modern browser can easily edit webpage elements and take a completely realistic looking screenshot of the altered webpage.

I've been familiar with the site Slashgear for about 2 minutes – so this is isn't an expert opinion – but it appears unfair to characterize this site a simply a also-ran re-writer of other outlets' articles. Many of the stories featured on the homepage are reviews of consumer electronics. Maybe I'm naive, but I doubt this site is copying other reviewers.

This hilarious pratfall shall be included in an 8-point footnote at the bottom of a page somewhere in Dr. Weaver's future biography; I can totally envision lady CS undergrads with posters of him in their dorm rooms.

I bet that there lots of men in Florida named Nicholas Weaver. If so, how can Dr. Weaver prove that the article would be understood to be about him, given the lack of other identifying information in the article?

The Krebs article clearly identifies him, and is cited as the source of Hillens article.

Correct me if I'm wrong, but most attorneys would advise them to print a heartfelt apology and retraction immediately. That should be a matter of policy for any publication. That it isn't for Slashgear speaks volumes.

It is mind-boggling just to skim the Krebs article and then try to figure out how Dr. Weavers name got mixed in with the defendants. I'd be interested in hearing her explain that.

I bet that there lots of men in Florida named Nicholas Weaver. If so, how can Dr. Weaver prove that the article would be understood to be about him, given the lack of other identifying information in the article?

Excellent legal theory you got there. You know that one worked famously well for Prenda Law.

Given that the writer's Twitter handle is "cyborgwriter", maybe she's just a poorly implemented AI. I wonder how many of these news sites are just slightly better Markov chain algorithms than spam blogs…